Public Prosecutor v Tey Tsun Hang

• Jurisdiction: Singapore
• Judge: Tan Siong Thye
• Judgment Date: 03 June 2013
• Neutral Citation: [2013] SGDC 166
• Court: District Court (Singapore)
• Docket Number: DAC 27011-16/2012, Magistrate’s Appeal No. 114/2013/01
• Published date: 16 July 2013
• Year: 2013
• Hearing Date: 18 April 2013,17 April 2013,13 April 2013,06 May 2013,08 May 2013,14 April 2013,16 April 2013,07 May 2013,15 April 2013,06 April 2013,28 May 2013,07 April 2013,04 April 2013,22 April 2013,03 April 2013,08 April 2013,11 April 2013,21 April 2013,02 April 2013,14 May 2013,12 April 2013,09 April 2013,10 April 2013,20 April 2013,01 April 2013,29 May 2013,05 April 2013,19 April 2013
• Plaintiff Counsel: DPPs Andre Jumabhoy, Kok Shu-En, and Pui Man Yau (Attorney-General's Chambers)
• Defendant Counsel: Mr Peter Low and Mr Choo Zheng Xi (Peter Low LLC)
• Citation: [2013] SGDC 166

Chief District Judge Tan Siong Thye: ORAL GROUNDS OF DECISION ON SENTENCE INTRODUCTION

I had earlier found the accused guilty on all of the six charges. The prosecution and the defence had made their respective submissions on sentence. I shall now briefly summarise their submissions.

PROSECUTION’S SUBMISSION ON SENTENCE

The prosecution submitted that in respect of each charge, the accused should be sentenced to 6 to 8 weeks’ imprisonment, with two of the sentences to run consecutively, resulting in a minimum sentence of 12 to 16 weeks’ imprisonment.

The prosecution highlighted the following aggravating factors: The accused’s actions were premeditated. The present case had generated a vast amount of public interest coupled with public disquiet that a law professor at NUS was in a position to take advantage of a student under his charge. It was submitted that the effect of such conduct went directly towards potentially undermining the reputation of our public education institutions. The accused’s behaviour in court can be considered an aggravating factor.

In addition, the prosecution submitted that the accused should be ordered under section 13 of the Prevention of Corruption Act (“PCA”) to pay a penalty amounting to $1514.80 [i.e. the cost of the Garibaldi dinner ($1278.60) and the 2 CYC shirts ($236.20)], while the Mont Blanc pen (and pouch) and the iPod should be forfeited.

DEFENCE’S SUBMISSION ON SENTENCE

The defence argued that a stiff fine was sufficient for the following reasons: The quantum involved for the gifts and the payment of the dinner was small. No academic favour was shown, and the NUS Faculty of Law’s grading framework was not compromised. NUS did not suffer any real loss or detriment. The accused is a man of good character. The accused had contributed to the NUS Faculty of Law and to the wider legal community and society. The accused had suffered physical and mental hardship. It was the first time that the offence of such a nature had been prosecuted, and deterrence was not the most relevant or suitable punishment, considering the rarity of such offences.

In the alternative, the defence argued that if the Court was minded to give a custodial sentence, it should only impose a short custodial sentence due to the “clang of the prison gates” principle.

In addition, the defence stated that the Court should make an order forfeiting the Mont Blanc pen and pouch, and the iPod. The defence also stated that the accused should pay a penalty for the value of the 2 CYC shirts ($236.20) and for the unpaid balance of the Garibaldi dinner ($278.60) under section 13 of the PCA.

DECISION OF THE COURT

The learned prosecutor, in his address on sentence, urged the Court to impose a deterrent sentence on the accused. The learned defence counsel, on the other hand, urged the Court to impose a stiff fine or a short custodial sentence. In determining the appropriate sentence, I have to examine and weigh several important issues such as the mitigating factors, aggravating factors, public interest, deterrence, and criminality of the accused. It is important that the punishment derived must be commensurate with and befit his crimes. It is vital that the accused must receive a fair sentence in the context of the factual matrix of his case. I shall start with the mitigating factors.

Mitigating factors Personal circumstances

I have taken into account the fact that the accused was a first offender with a clean record. He has a wife and a daughter. He also has to look after his aged and ailing parents. The defence counsel informed me that the accused’s permanent residency had not been renewed. He lost his job after his conviction. This will cause hardship to his family.

It is trite law that personal circumstances such as financial difficulties and hardship caused to the family by his incarceration have no mitigating value save in the most exceptional cases (see Lai Oei Mui Jenny v PP [1993] 2 SLR(R) 406 at [10] to [11]; PP v Tan Fook Sum [1999] 1 SLR(R) 1022 at [31]; Gopalkrishnan Vanitha v PP [1999] 3 SLR(R) 310 at [35]). The present case does not fall within this category of the most exceptional cases.

The courts in Malaysia also took a similar position. In Kong Yii Tai v PP (1964) MLJ 183, the appellant pleaded for leniency as he had a wife and three young children to support. McGilligan J dismissed his appeal and said:-

“I have sympathy for the appellant’s wife and children, but, (as the court often has to say in criminal cases) it is before, not after, the criminal act has been committed that wife and children should be thought of.”

The English courts also maintained this position. In Melia (unreported – 1.5.62, 207/62), the court said:-

“One is always sorry for a wife in these circumstances, and indeed if this court were to pay regard to the letters received from wives, the court would find themselves releasing every prisoner.”

The accused’s employment had been terminated by NUS after his conviction. In PP v Thavananthan [1994] 2 MLJ 436, it was pleaded that the accused would lose his employment. The court concluded that by committing the act of corruption, the accused had himself terminated his service.

Service to the community

In the present case, the accused had contributed to the NUS Faculty of Law and to the wider legal community and society. He served as a District Judge, where he chaired the Subordinate Court’s Research and Resource Centre. He was a Justice Law Clerk. He was a State Counsel at the Attorney-General’s Chambers, where he was also the Principal Editor of the Singapore Law Reports.

He had served as a Law Professor, where he held editorships of various law journals. He was the Director of the Centre for Commercial Law Studies. The accused was nominated by the NUS Faculty of Law for the university’s Annual Teaching Excellence Award 2009/2010.

The former Dean of the NUS Faculty of Law, Professor Tan Cheng Han, stated that the accused’s “overall performance in teaching, research and service was good, particularly his performance in teaching and research ... In the years that A/P Tey has been with the Faculty of Law, he has been a productive and valued member of the law school. He is eager to help when called upon and is respected by his peers and the student body. His peer reviews and student feedback also clearly show him to be a dedicated teacher.”¹

He had published extensively, which includes the following publications: 2 books: “Trust, Trustees and Equitable Remedies – Text and Materials [2010]” and “Commentary and Cases on Personal Property law [2011]”. 4 monographs at the Centre for Commercial Law Studies. Co-author of 2 volumes of the Subordinate Court’s Practitioners’ Library. A non-exhaustive list of academic articles in Annex B of the Defence’s Plea in Mitigation.

The accused’s services to the community as a mitigating factor had been considered and applied by the High Court in determining an appropriate sentence: see Knight Glenn Jeyasingam v PP [1992] 1 SLR(R) 523 at [27] where the High Court took into account as a mitigating factor the appellant’s distinguished record of public service and service to the community in the education sector; and Siah Ooi Choe v PP [1988] 1 SLR(R) 309 at [4] where the High Court took into account as a mitigating factor the appellant’s contributions to community work and development.

I have also read all the testimonials of the accused’s 9 colleagues and 22 former students urging the Court to show mercy and compassion. Sentencing the accused is not an easy task. However, there is a need to balance his interests against the societal interests. I cannot ignore the aggravating factors which are present in this instant case. In this regard, I turn next to the aggravating factors.

Aggravating factors Accused initiated the illicit relationship

The aggravating factors have a strong bearing on the punishment to be imposed on the accused. The accused was an Associate Professor of Law at the NUS. He is a married man of 42 years of age with a young daughter. He took advantage of his position as a law professor to single out PW1 in his Equity and Trusts class for special attention. He impressed PW1 who was just shy of 21 years old, with his illustrious career. He told her that she had the potential to achieve first class honours. At the same time, he disclosed her results to her before they were made public. He also revealed to her confidential information about her class ranking. The disclosure of confidential information, and his actions and conversations with PW1, who was a young and impressionable student, drew her to the accused as a Professor who could help her to attain better grades.

Solicited gifts from PW1

What I found particularly unbecoming of the accused, who was a senior educator (i.e. Professor of Law), was that he clearly and systematically took advantage of his student, PW1. He impliedly solicited gifts from PW1. First, he hinted for a Mont Blanc pen. He even went to the extent of finding out the cost of the pen and pouch - not to reimburse her as he had alleged - but to satisfy his curiosity about the value of the gifts. Subsequently, he went on to impliedly solicit an iPod. He even made her pay for an expensive dinner ($1278.60), organised by him for his past students who had assisted him in legal research. Ironically, PW1 was supposed to be a guest at this dinner. The payment of the Garibaldi dinner and the payment of the 2 tailor-made CYC shirts caught PW1 by total surprise as she was unaware that she had to pay for these items. She ended up paying for them as she could not turn down the accused as he was her professor.

The corrupt actions of the accused were premeditated, and were carried out on several occasions. The receipt of the Mont Blanc pen must have given the accused the impression that PW1 came from a wealthy family.

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